My Turn: Are we all suspects now?

The unprecedented sweep and scope of the National Security Agency invasion of privacy for Americans is breathtaking. The initial response from the government, of course, has been “everything is legal.” What they aren’t discussing is whether it’s constitutional. That is always the tougher question.

Americans have the 4th Amendment to our federal Bill of Rights as an underpinning to protection for the privacy and security of our “persons, houses, papers, and effects.” But how can we be really secure in our homes and communications if warrantless government agencies use a secret court on an ex parte basis to gather information?

It gets worse because there are 1.2 million people with top secret security clearances and 38 percent of them are private contractors spread over 6,000 NSA vendors. With every keyboard click and phone number stored away, who can say with a straight face no abuse or misuse will ever occur?

George Santayana said years ago that those who fail to learn the lessons of history will be condemned to repeat them. Let’s turn back to a lesson of history in 1760.

The British authorities were concerned that the colonists had untaxed tea and other items in their homes that had been smuggled into the colonies without proper payment of taxes or duties. Therefore, in 1760, all of British North America became subject to a government order authorizing a “writ of assistance.”

The writ was a piece of paper given to British soldiers and customs officials authorizing them to search anyone, anywhere, for anything without the need to establish reasonable or probable cause to suspect that the person was in violation of a law.

A young Boston lawyer, James Otis, gave up his job as king’s advocate general in order to argue in court against the Writs of Assistance. Otis said the broad writ was unconstitutional under British law. John Adams, who witnessed Otis in action in a Boston courtroom, wrote, “Otis was a flame of fire. . . . The seeds of patriots and heroes were then and there sown. Here this day, . . . the child Independence, was born.”

When the Declaration of Independence was signed on July 4, 1776, it referenced the Writs of Assistance, claiming that the king had “sent swarms of officers to harass our people” and had acted like a “tyrant.” It is not surprising that after independence, all thirteen colonies abolished the writs of assistance.

Consequently, the Bill of Rights requires that a law enforcement officer get a warrant specifically describing the person or place he or she intends to search and the items he or she is looking for. The warrant requirement of the 4th Amendment thus helps to guarantee that citizens will be secure in “their persons, houses, papers, and effects.” Under our system you don’t get to first search for probable cause and then go get a warrant.

The other concerning matter is the Foreign Intelligence Surveillance Court which had about as much in common with other courts as lightning has with the lightning bug. It is a one-sided court. Other than certain juvenile and intimate family matters, our courts are open to the public. As a nation we decided long ago that the best way to ensure public accountability is for the public to have free access to the government as it conducts its business in front of judges.

The FISA court is part of a security apparatus because of its secrecy and because of its one-sided nature. The Wall Street Journal had recent statistics which showed approximately 700 requests to FISA, with zero denials over the past seven years. When you don’t have any opposition, winning in court is a breeze.

With just three common carriers, AT&T, Sprint and Verizon, there are 314 million phone users in the United States out of a population of about 350 million people being data mined. That’s an extremely broad sweep and it makes George Orwell’s 1984 seem tame by comparison under our electronic units of assistance program called PRISM.

When I was growing up in the 1950s, President Dwight Eisenhower gave a famous speech about his concern that the military industrial complex posed a challenge to America’s future because of its size and power. Today, someone needs to speak out about the military intelligence complex in the same terms.

Only now do we comprehend what Sen. Ron Wyden was referring to when he said the American public would be “stunned” to learn the scope of the domestic spying occurring in our nation. This is the same federal government that the Wall Street Journal’s recent polling data showed at a record low of 17 percent for trust in its decision-making ability. The bottom line is that our government, the same one that may have used the IRS to harass political opponents, wants you to trust it while it skirts the Bill of Rights. Why should you?

(Chuck Douglas, an attorney in Concord, has served as a state superior and Supreme Court justice and a member of Congress from New Hampshire.)